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(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is amended in accordance with subsections (2) and (3). (2) Omit section 256D (power to impose financial penalties). (3) Omit Schedule A4 (Certification Officer: power to impose financial penalties). (4) In consequence of the amendments made by subsections (2) and (3), in the Trade Union Act 2016— (a) in section 19, omit subsections (1) to (3); (b) omit Schedule 3.
Propose a change(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is amended in accordance with subsections (2) and (3). (2) Omit section 257A (levy payable to Certification Officer). (3) In section 258 (Certification Officer: annual reports and account), omit subsection (1A). (4) In consequence of the amendments made by subsections (2) and (3), omit section 20 of the Trade Union Act 2016.
Propose a change(1) The Trade Union and Labour Relations (Consolidation) Act 1992 is amended as follows. (2) In section 45D (appeals from Certification Officer on question arising in proceedings etc under Chapters 1, 2 and 3 of Part 1), after “question” insert “of law”. (3) In section 56A (appeal from Certification Officer on question arising in proceedings etc under section 55), after “question” insert “of law”. (4) In section 95 (appeal from Certification Officer on question arising in proceedings etc under Chapter 6 of Part 1), after “question” insert “of law”. (5) In section 104 (appeal from Certification Officer on question arising in proceedings etc under section 103), after “question” insert “of law”. (6) In section 108C (appeal from Certification Officer on question arising in proceedings etc under Chapter 7A of Part 1), after “question” insert “of law”.
Propose a changeIn section 285 of the Trade Union and Labour Relations (Consolidation) Act 1992 (employment outside Great Britain)— (a) in subsection (1), before “works” insert “ordinarily”; (b) in subsection (1A), before “works” insert “ordinarily”.
Propose a changeIn section 293 of the Trade Union and Labour Relations (Consolidation) Act 1992 (regulations), for subsection (3) substitute— (3) Regulations under this section are to be made by statutory instrument. (4) A statutory instrument containing regulations to which subsection (5) applies (whether alone or with other provision) may not be made unless a draft of the instrument is laid before and approved by a resolution of each House of Parliament. (5) This subsection applies to regulations prescribing anything for the purposes of— (a) section 70ZC (access agreements: response period and negotiation period); (b) section 70ZE (access agreements: period to make application to Central Arbitration Committee); (c) section 70ZF (access agreements: determinations by Central Arbitration Committee); (d) section 70ZJ (enforcement of access agreements: amounts payable for breach); (e) section 236A (detriment for taking industrial action). (6) Any other statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.
Propose a changeIn consequence of provision made by this Part— (a) in the Trade Union and Labour Relations (Consolidation) Act 1992— (i) omit section 297B (devolved Welsh authorities); (ii) in section 299 (index of defined expressions), omit the entry for “devolved Welsh authority”; (b) in the Trade Union (Wales) Act 2017 (anaw 4), omit section 1 (amendments to the Trade Union and Labour Relations (Consolidation) Act 1992).
Propose a change(1) The Secretary of State has the function of enforcing the labour market legislation listed in Part 1 of Schedule 7 (but see also section 92). (2) For the purposes of enabling the Secretary of State to perform that function, this Part confers powers on— (a) the Secretary of State, and (b) enforcement officers. (3) In this Part “enforcement officer” means a person appointed by the Secretary of State under this section. (4) The powers of an enforcement officer include power to exercise any of the Secretary of State’s enforcement functions, other than the function under subsection (1). (5) Accordingly, in the case of the exercise by an enforcement officer of an enforcement function of the Secretary of State, any reference in an enactment to the Secretary of State in connection with that function is to be read as, or as including, a reference to that officer or any other enforcement officer. (6) A person appointed under this section may exercise any powers of an enforcement officer to the extent specified in the appointment. (7) Subsection (1) does not limit the Secretary of State’s powers under— (a) section 116 (power to bring proceedings in employment tribunal), or (b) section 117 (power to provide legal assistance). (8) Nothing in this section authorises the Secretary of State to bring proceedings in Scotland for an offence.
Propose a change(1) Any reference in this Part to an enforcement function of the Secretary of State is a reference to— (a) any function of the Secretary of State under this Part, (b) any function of the Secretary of State under any provision of relevant labour market legislation, or (c) any other function of the Secretary of State that is exercisable for the purposes of enforcing any relevant labour market legislation. (2) But the following functions are not enforcement functions of the Secretary of State for the purposes of this Part— (a) the power to appoint enforcement officers under section 90; (b) any function under section 92 (delegation of functions); (c) any function under section 93 (Advisory Board); (d) any function under section 94 or 95 (strategies and reports); (e) any function under or by virtue of section 116 or 117 (powers in relation to civil proceedings); (f) any function under Part 1 of Schedule 11 (transfer schemes); (g) any power to give directions or make subordinate legislation.
Propose a change(1) The Secretary of State may make arrangements with a public authority— (a) for the authority to exercise any delegable function of the Secretary of State to the extent specified in the arrangements; (b) for officers or other staff of the authority to be appointed as enforcement officers. (2) The following functions are “delegable functions”— (a) any enforcement function of the Secretary of State; (b) any function of the Secretary of State by virtue of section 116 (power to bring proceedings in employment tribunal); (c) any function of the Secretary of State under section 7 or 11 of the Gangmasters (Licensing) Act 2004 (powers relating to licensing of gangmasters). (3) Accordingly, in the case of the exercise of a function by a public authority in accordance with arrangements under this section, any reference in an enactment to the Secretary of State in connection with that function is to be read as a reference to that authority. (4) Arrangements under this section may provide for payments to be made by the Secretary of State in respect of the performance of any function to which the arrangements relate. (5) Arrangements under this section do not prevent the Secretary of State from performing a function to which the arrangements relate. (6) In this section “public authority” means a person certain of whose functions are functions of a public nature.
Propose a change(1) The Secretary of State must establish an Advisory Board (“the Board”) for the purposes of providing advice to the Secretary of State about such matters as the Secretary of State may specify relating to the Secretary of State’s function under section 90(1). (2) The Board is to consist of not fewer than nine members appointed by the Secretary of State. (3) Each member of the Board is to hold and vacate office in accordance with the terms and conditions of the member’s appointment. (4) The members of the Board must include an equal number of each of the following— (a) persons appearing to the Secretary of State to represent the interests of trade unions; (b) persons appearing to the Secretary of State to represent the interests of employers; (c) persons appearing to the Secretary of State to be independent experts. (5) For the purposes of subsection (4)(c) an “independent expert” is a person who— (a) is not a person falling within paragraph (a) or (b) of subsection (4), and (b) has expertise that is relevant to the Secretary of State’s function under section 90(1). (6) The Secretary of State may pay such remuneration or allowances to members of the Board as the Secretary of State may determine. (7) In addition to the matters referred to in subsection (1), the Board may also provide advice to the Secretary of State about such matters as the Secretary of State may specify relating to the Secretary of State’s functions under or by virtue of sections 116 and 117 (powers in relation to civil proceedings).
Propose a change(1) The Secretary of State must, before the beginning of each relevant three-year period (see subsection (6)), prepare and publish a labour market enforcement strategy for that period. (2) A labour market enforcement strategy is a document that— (a) sets out the Secretary of State’s assessment of— (i) the scale and nature of non-compliance with relevant labour market legislation during the period of three years ending immediately before the strategy period, and (ii) the likely scale and nature of such non-compliance during the strategy period, (b) contains a proposal for the strategy period setting out how enforcement functions of the Secretary of State are to be exercised, and (c) deals with any other matters which the Secretary of State considers appropriate. (3) The Secretary of State— (a) may, at any time during the strategy period, revise the labour market enforcement strategy, and (b) must publish any revised labour market enforcement strategy. (4) In preparing or revising a labour market enforcement strategy, the Secretary of State must consult the Advisory Board. (5) The Secretary of State must lay before Parliament and the Northern Ireland Assembly a copy of any strategy published under this section. (6) In this section— “relevant three-year period” means— the period of three years beginning with the next 1 April after the day on which this section comes into force; each successive period of three years; “strategy period”, in relation to a labour market enforcement strategy, means the period to which the strategy relates.
Propose a change(1) As soon as reasonably practicable after the end of each financial year, the Secretary of State must prepare and publish an annual report for that year. (2) The annual report must include the following— (a) an assessment of the extent to which enforcement functions of the Secretary of State were exercised in accordance with the applicable strategy during the year; (b) an assessment of the extent to which the applicable strategy had an effect on the scale and nature of non-compliance with relevant labour market legislation during the year. (3) Before publishing an annual report under this section, the Secretary of State must consult the Advisory Board. (4) The Secretary of State must lay before Parliament and the Northern Ireland Assembly a copy of every annual report published under this section. (5) In this section— “the applicable strategy”, in relation to a financial year, means any labour market enforcement strategy published under section 94 that has effect for that year; “financial year” means— the period beginning with the day on which this section comes into force and ending with the following 31 March, and each successive period of 12 months.
Propose a change(1) The Secretary of State may by notice require a person— (a) to attend at a specified time and place and to provide information by answering questions; (b) to provide specified information, or information of a specified description, by a specified date; (c) to provide specified documents, or documents of a specified description, by a specified date. In this subsection “specified” means specified in the notice. (2) The Secretary of State may give a notice under this section to a person only if the Secretary of State has reasonable grounds to believe that— (a) in the case of a requirement under subsection (1)(a), the person is able to provide information which is necessary for any enforcement purpose; (b) in the case of a requirement under subsection (1)(b) or (c)— (i) it is necessary to obtain the information or document (as the case may be) for any enforcement purpose, and (ii) the person is able to provide it. (3) In this section “enforcement purpose” means— (a) the purpose of enabling the Secretary of State to determine whether to exercise any enforcement function; (b) the purpose of determining whether there has been any non-compliance with relevant labour market legislation; (c) in the case of a requirement under subsection (1)(c), the purpose of ascertaining whether the documents may be required as evidence in proceedings for any non-compliance with relevant labour market legislation.
Propose a change(1) An enforcement officer may, for any enforcement purpose— (a) enter any premises, and (b) exercise any powers within subsection (2). This is subject to section 98 (which provides that a warrant is necessary to enter a dwelling). (2) The powers referred to in subsection (1)(b) are— (a) to inspect or examine any documents on the premises; (b) to require any person on the premises to produce any documents which the officer has reasonable grounds to believe are on the premises and within the person’s possession or control; (c) to have access to, and check the operation of, any computer or other equipment used in connection with the processing or storage of any information or documents. (3) The officer may only exercise a power conferred by this section at a reasonable time, unless it appears to the officer that there are grounds for suspecting that the purpose of entering the premises may be frustrated if the officer seeks to enter at a reasonable time. (4) An enforcement officer may seize any document produced, inspected or examined under this section. (5) In this section— “enforcement purpose” means— the purpose of enabling the Secretary of State to determine whether to exercise any enforcement function; the purpose of determining whether there has been any non-compliance with relevant labour market legislation; the purpose of ascertaining whether there are documents on the premises which may be required as evidence in proceedings for any non-compliance with relevant labour market legislation; “equipment” includes software.
Propose a change(1) An enforcement officer may not by virtue of section 97 enter any dwelling unless a justice has issued a warrant authorising the officer to enter the dwelling. (2) A justice may issue a warrant under this section only if, on an application by the officer, the justice is satisfied— (a) that the officer has reasonable grounds to believe that— (i) there are documents in the dwelling which for any enforcement purpose the officer wishes to inspect, examine or seize, or (ii) there is computer or other equipment in the dwelling to which the officer wishes to have access for any enforcement purpose, and (b) that any of the conditions in subsection (3) is satisfied. (3) The conditions are— (a) that it is not practicable to communicate with any person entitled to grant entry to the dwelling; (b) that it is not practicable to communicate with any person entitled to grant access to the documents or equipment; (c) that entry to the dwelling is unlikely to be granted unless a warrant is produced; (d) that the purpose of entry may be frustrated or seriously prejudiced unless an enforcement officer arriving at the dwelling can secure immediate entry to it. (4) In this section— “enforcement purpose” has the same meaning as in section 97; “justice” means— in relation to England and Wales, a justice of the peace; in relation to Scotland, a sheriff or summary sheriff; in relation to Northern Ireland, a lay magistrate. (5) For further provision about warrants under this section, see section 131 and Schedule 8.
Propose a change(1) A power conferred by section 96 or 97 to require the production or provision of any document includes, in the case of a document stored in an electronic form, power to require the document to be produced or provided in a form— (a) in which it can be taken away, and (b) in which it is visible and legible or from which it can readily be produced in a visible and legible form. (2) The Secretary of State may inspect or examine any document provided under section 96. (3) The Secretary of State or an enforcement officer may take copies of any document— (a) provided in response to a requirement under section 96, or (b) inspected, examined or produced under section 97.
Propose a change(1) This section applies to any document which— (a) is provided in response to a requirement under section 96, or (b) is seized under section 97. (2) The document may be retained so long as is necessary in all the circumstances and in particular— (a) for use as evidence at a trial for a labour market offence, or (b) for forensic examination or for investigation in connection with a labour market offence. (3) No document may be retained for either of the purposes mentioned in subsection (2) if a photograph or a copy would be sufficient for that purpose.
Propose a changeFor provision enabling enforcement officers in England and Wales to exercise powers under the Police and Criminal Evidence Act 1984 in relation to the investigation of labour market offences, see section 114B of that Act.
Propose a change(1) In this section— (a) “relevant contravention” means a contravention of section 6 of the Gangmasters (Licensing) Act 2004 (prohibition of unlicensed activities), so far as it applies in relation to England and Wales and Scotland; (b) references to an enforcement officer do not include an enforcement officer who is authorised by virtue of section 114B of the Police and Criminal Evidence Act 1984 to exercise any power under Part 2 of that Act in relation to a relevant contravention. (2) If a justice is satisfied that there are reasonable grounds for an enforcement officer to enter relevant premises for the purpose of determining whether there has been a relevant contravention, and is also satisfied— (a) that admission to the premises has been refused, or that a refusal is expected, and (in either case) that notice of the intention to apply for a warrant has been given to the occupier, (b) that an application for admission, or the giving of such a notice, would defeat the object of the entry, (c) that the case is one of extreme urgency, or (d) that the premises are unoccupied or the occupier is temporarily absent, the justice may issue a warrant authorising the enforcement officer to enter the premises, if necessary using reasonable force. (3) The reference in subsection (2) to being satisfied that there are reasonable grounds as mentioned in that subsection is, in relation to England and Wales, a reference to being satisfied by written information on oath. (4) An enforcement officer entering any premises by virtue of a warrant under this section may— (a) when entering the premises, bring any equipment which the officer considers necessary, (b) exercise any power conferred by section 97(2) or (4), (c) carry out on the premises any other inspections and examinations which the officer considers necessary for the purpose of determining whether there has been a relevant contravention, and (d) seize any item which is on the premises. (5) Where by virtue of subsection (4)(d) an enforcement officer seizes any item, the officer must leave on the premises from which the item was removed a statement giving details of what was seized and stating that the officer has seized it. (6) Any item seized by an enforcement officer by virtue of subsection (4)(d) may be retained for as long as the officer considers necessary for the purpose of determining whether there has been a relevant contravention. (7) In this section— “justice” means— in relation to England and Wales, a justice of the peace; in relation to Scotland, the sheriff, a summary sheriff or a justice of the peace; “relevant premises” means any premises which an enforcement officer has reasonable grounds to believe are— premises where a person acting as a gangmaster, or a person supplied with workers or services by a person acting as a gangmaster, carries on business, or premises which such a person uses in connection with the person’s business; “worker” has the same meaning as in the Gangmasters (Licensing) Act 2004 (see section 26 of that Act). (8) Section 4 of the Gangmasters (Licensing) Act 2004 (acting as a gangmaster) applies for the purposes of this section as it applies for the purposes of that Act. (9) For further provision about warrants under this section, see section 131 and Schedule 8.
Propose a change(1) Where it appears to the Secretary of State that— (a) on any day (“the relevant day”), a sum in respect of— (i) one or more periods ending before the relevant day, or (ii) one or more events occurring before the relevant day, was due from a person (the “liable party”) to an individual (the “underpaid individual”) under or by virtue of a statutory pay provision (see subsection (7)), and (b) any period for payment of that sum to be made has ended without the sum having been paid to the underpaid individual, the Secretary of State may give a notice of underpayment to the liable party. (2) A notice of underpayment is a notice under this section requiring the liable party to pay the required sum to the underpaid individual before the end of the period of 28 days beginning with the day on which the notice is given. For the meaning of the “required sum”, see section 104. (3) Subsection (1) is subject to— (a) subsection (6), and (b) section 105 (period to which notice of underpayment may relate). (4) The Secretary of State may give a notice of underpayment to a person in respect of a sum that was due from the person on the relevant day whether or not the sum remains due at the time of the giving of the notice (see, in particular, section 107 (penalties for underpayment)). (5) But where all or part of that sum has been paid before the giving of the notice, the requirement imposed by the notice is, to that extent, to be treated as met. (6) The Secretary of State may not give a notice of underpayment in respect of any matter if— (a) proceedings have been brought about the matter by virtue of section 116 (power to bring proceedings in employment tribunal), and (b) the proceedings have not been finally determined or discontinued. (7) In this Part “statutory pay provision” means a provision of relevant labour market legislation that— (a) confers a right or entitlement to the payment of any sum to an individual, or (b) prohibits or restricts the withholding of payment of any sum to an individual.
Propose a change(1) For the purposes of section 103(2), the “required sum” is whichever is the greater of the following sums— (a) the sum that was due to the underpaid individual on the relevant day; (b) in a case where regulations under subsection (2) apply, the sum determined in accordance with the regulations. This is subject to subsection (4). (2) Regulations made by the Secretary of State may make provision for determining the sum required to be paid to an individual by a notice of underpayment in a case where the sum due to the individual on any day under or by virtue of a statutory pay provision would have been greater had that sum been determined by reference to the statutory pay provision as it has effect at the time of giving the notice of underpayment. (3) But regulations under subsection (2) may not make provision in relation to any provision of the National Minimum Wage Act 1998 (see instead section 17 of that Act). (4) If the required sum in respect of an underpaid individual would (in the absence of this subsection) be greater than the specified maximum for the statutory pay provision concerned, the required sum in respect of the underpaid individual is the specified maximum. (5) For the purposes of subsection (4) “the specified maximum”, in relation to a statutory pay provision, means an amount specified by, or determined in accordance with, regulations made by the Secretary of State. (6) Regulations under this section are subject to the affirmative resolution procedure.
Propose a change(1) A notice of underpayment may not relate to any sum that became due under or by virtue of a statutory pay provision before the beginning of the claim period. (2) The “claim period”, in relation to a notice of underpayment, is the period of six years ending with the day on which the notice is given. (3) The Secretary of State may by regulations amend this section so as to alter the length of the claim period. (4) Regulations under subsection (3)— (a) may specify different claim periods in relation to different statutory pay provisions; (b) may not provide for the claim period in relation to a notice of underpayment to be greater than the period of six years ending with the day on which the notice is given. (5) Regulations under subsection (3) are subject to the affirmative resolution procedure. (6) A notice of underpayment may relate to sums that became due before the coming into force of this section. (7) But a notice of underpayment may not relate to any sum that became due before the day on which this Act is passed. (8) Subsection (7) does not apply to a notice of underpayment so far as it relates to any sum due under section 17 of the National Minimum Wage Act 1998 (entitlement to additional remuneration for failure to pay at least the minimum wage). (9) See also section 112(3) (claim period for replacement notices of underpayment).
Propose a change(1) Where a notice of underpayment relates to more than one underpaid individual, the notice may identify the individuals by name or by description. (2) A notice of underpayment must specify, for each underpaid individual to whom it relates— (a) the relevant day in relation to the individual; (b) the sum due to the individual on that day and how that sum was calculated; (c) the period or periods, or event or events, in respect of which it was due; (d) the statutory pay provision under or by virtue of which it was due; (e) the fact that any period for payment of that sum to be made ended without the sum having been paid; (f) the required sum in respect of the individual and (if different from the sum mentioned in paragraph (b)) how that sum was calculated.
Propose a change(1) A notice of underpayment must require the liable party to pay a penalty to the Secretary of State. This is subject to section 108(1) (power to specify exceptions). (2) The penalty must be paid before the end of the period of 28 days beginning with the day on which the notice is given. (3) The amount of the penalty is the total of the amounts for each underpaid individual to whom the notice relates calculated in accordance with subsections (4) and (5) (but see subsection (6)). (4) The amount for each underpaid individual to whom the notice relates is 200% of the sum specified in the notice of underpayment as the sum due to the individual on the relevant day (see section 106(2)(b)). (5) But if the amount determined under subsection (4) for any underpaid individual would be more than £20,000, the amount for the individual taken into account in calculating the penalty is to be £20,000. (6) If a penalty calculated in accordance with subsection (3) would be less than £100, the amount of the penalty is to be £100. (7) The Secretary of State may by regulations amend this section— (a) so as to substitute a different percentage for a percentage for the time being specified in this section; (b) so as to substitute a different amount for an amount for the time being specified in this section; (c) so as to specify different percentages or amounts for different purposes. (8) Regulations under subsection (7) are subject to the affirmative resolution procedure.
Propose a change(1) The Secretary of State may by directions specify circumstances in which a notice of underpayment is not to impose a requirement to pay a penalty. (2) A direction under subsection (1) may be amended or revoked by a further direction. (3) A notice of underpayment that imposes a requirement to pay a penalty must— (a) specify the amount of the penalty, (b) state how that amount was calculated, and (c) specify the date by which the penalty must be paid. (4) In a case where a notice of underpayment imposes a requirement on a person to pay a penalty, if the person, before the end of the period of 14 days beginning with the day on which the notice is given— (a) pays (or has paid) the required sum specified in the notice of underpayment, and (b) pays at least half the penalty, the person is to be regarded as having paid the penalty. (5) Any penalty received by the Secretary of State in accordance with section 107 is to be paid into the Consolidated Fund.
Propose a change(1) Subsection (3) applies where— (a) the Secretary of State is proposing to give a notice of underpayment that imposes a requirement on a person to pay a penalty, and (b) it appears to the Secretary of State that— (i) relevant criminal proceedings have been brought, or (ii) relevant criminal proceedings may be brought. (2) In this section “relevant criminal proceedings” means proceedings against the person for a labour market offence in respect of any act or omission to which the notice relates (“the relevant conduct”). (3) The notice of underpayment may contain provision suspending the requirement to pay the penalty until a notice terminating the suspension is given to the person under subsection (4). (4) The Secretary of State may give the person a notice terminating the suspension (a “penalty activation notice”) if it appears to the Secretary of State— (a) in a case referred to in subsection (1)(b)(i), that the proceedings have concluded without the person having been convicted of a labour market offence in respect of the relevant conduct, or (b) in a case referred to in subsection (1)(b)(ii)— (i) that relevant criminal proceedings will not be brought, or (ii) that relevant criminal proceedings have concluded without the person having been convicted of a labour market offence in respect of the relevant conduct. (5) Where a penalty activation notice is given, the requirement to pay the penalty has effect as if the notice of underpayment had been given on the day on which the penalty activation notice was given. (6) The Secretary of State must give the person a notice withdrawing the requirement to pay the penalty if it appears to the Secretary of State that the person has been convicted of a labour market offence in respect of the relevant conduct.
Propose a change(1) A person to whom a notice of underpayment is given may appeal to a tribunal against any one or more of the following— (a) the decision to give the notice; (b) any requirement imposed by the notice to pay a sum to an individual; (c) any requirement imposed by the notice to pay a penalty. (2) An appeal under this section must be made before the end of the period of 28 days beginning with the day on which the notice is given. (3) An appeal under subsection (1)(a) may be made only on one or more of the following grounds— (a) that no sum was due to any individual to whom the notice relates on the specified day under or by virtue of the specified provision; (b) that, in the case of every sum specified in the notice as due to an individual to whom the notice relates, the sum had been paid before the end of the period mentioned in section 103(1)(b); (c) that, in the case of every sum specified in the notice as due to an individual to whom the notice relates, the sum was one to which a notice may not relate by virtue of subsection (1) or (7) of section 105 (period to which notice may relate). (4) An appeal under subsection (1)(b) in relation to an individual may be made only on one or more of the following grounds— (a) that, on the specified day, no sum was due to the individual under or by virtue of the specified provision; (b) that, in the case of any sum specified in the notice as due to the individual, the sum had been paid before the end of the period mentioned in section 103(1)(b); (c) that, in the case of any sum specified in the notice as due to the individual, the sum was one to which a notice may not relate by virtue of subsection (1) or (7) of section 105; (d) that the amount specified in the notice as the sum required to be paid to the individual is incorrect; (e) that, in the case of a replacement notice given under section 112, the notice contravenes subsection (2) of that section. (5) An appeal under subsection (1)(c) may be made only on one or more of the following grounds— (a) that the notice was given in circumstances specified in a direction under section 108(1); (b) that the amount of the penalty specified in the notice of underpayment has been incorrectly calculated (whether because the notice is incorrect in some of the particulars which affect that calculation or for some other reason). (6) Where the tribunal allows an appeal under subsection (1)(a), it must cancel the notice. (7) Where, in a case where subsection (6) does not apply, the tribunal allows an appeal under subsection (1)(b) or (c)— (a) the tribunal must rectify the notice, and (b) the notice of underpayment, as rectified, has effect as if it had been given on the day on which the tribunal makes its determination. (8) In this section— “the specified day”, in relation to an individual, means the day specified in accordance with section 106(2)(a) in relation to the individual; “the specified provision”, in relation to an individual, means the statutory pay provision specified in accordance with section 106(2)(d) in relation to the individual; “tribunal” means— an employment tribunal, in relation to England and Wales or Scotland; an industrial tribunal, in relation to Northern Ireland.
Propose a change(1) Where— (a) a notice of underpayment has been given to a person (and not already withdrawn or cancelled), and (b) it appears to the Secretary of State that the notice incorrectly includes or omits any requirement or is incorrect in any particular, the Secretary of State may withdraw it by giving a notice of withdrawal to the person. (2) Where a notice of underpayment given to a person is withdrawn and no replacement notice of underpayment is given in accordance with section 112— (a) any sum paid by or recovered from the person by way of penalty payable under the notice must be repaid to the person with interest at the appropriate rate running from the date when the sum was paid or recovered; (b) any appeal against the notice must be dismissed. (3) In subsection (2)(a) “the appropriate rate” means the rate that, on the date the sum was paid or recovered, was specified in section 17 of the Judgments Act 1838. (4) Where subsection (2) applies, the notice of withdrawal must indicate the effect of that subsection (but a failure to do so does not make the withdrawal ineffective).
Propose a change(1) If the Secretary of State— (a) gives a notice of withdrawal to a person under section 111, and (b) is of the opinion referred to in section 103(1) in relation to any individual specified in the notice which is being withdrawn (“the original notice”), the Secretary of State may at the same time give a fresh notice of underpayment to the person (a “replacement notice”). (2) The replacement notice may not relate to any individual to whom the original notice did not relate. (3) The claim period for a replacement notice (see section 105(1)) is the period— (a) beginning with the claim period for the original notice, and (b) ending with the day on which the replacement notice is given. Accordingly, the replacement notice may relate to sums that became due after the day on which the original notice was given. (4) The replacement notice must— (a) set out the differences between it and the original notice that it is reasonable for the Secretary of State to consider are material, and (b) explain the effect of section 113. (5) Failure to comply with subsection (4) does not make the replacement notice ineffective. (6) Where a replacement notice is withdrawn under section 111, no further replacement notice may be given under subsection (1) as a result of the withdrawal. (7) Nothing in this section affects any power that exists apart from this section to give a notice of underpayment in relation to any underpaid individual.
Propose a change(1) This section applies where a notice of underpayment is withdrawn under section 111 and a replacement notice is given in accordance with section 112. (2) If an appeal has been made under section 110 in respect of the original notice and the appeal has not been withdrawn or finally determined before the time when that notice is withdrawn— (a) that appeal (“the earlier appeal”) has effect after that time as if it had been made in respect of the replacement notice, and (b) the person given the notice may exercise the right of appeal under that section in respect of the replacement notice only if the earlier appeal is withdrawn. (3) If a sum was paid by or recovered from the person by way of penalty under the original notice— (a) an amount equal to that sum (or, if more than one, the total of those sums) is to be treated as having been paid in respect of the penalty imposed by the replacement notice, and (b) any amount by which that sum (or total) exceeds the amount of the penalty imposed by the replacement notice must be repaid to the person with interest at the appropriate rate running from the date when the sum (or, if more than one, the first of them) was paid or recovered. (4) In subsection (3)(b) “the appropriate rate” means the rate that, on the date mentioned in that provision, was specified in section 17 of the Judgments Act 1838.
Propose a change(1) In a case where it appears to the Secretary of State that the liable party has failed to comply with a requirement in a notice of underpayment to pay a sum to an underpaid individual, the Secretary of State may apply to the court for an order under this section. (2) An application under this section may be made only if— (a) the relevant 28-day period has ended, and (b) the liable party’s appeal rights are exhausted (see subsection (5)). (3) If, on an application under this section, the court is satisfied that— (a) the notice was given to the liable party and has not been withdrawn, and (b) the liable party has failed to comply with a requirement imposed by the notice to pay a sum to an underpaid individual, the court must order the liable party to pay the sum to the underpaid individual within the period specified in the order. (4) This section does not affect any right of an underpaid individual to recover any sums owed by the liable party to the individual. (5) For the purposes of this section, the liable party’s appeal rights are exhausted if— (a) the relevant 28-day period ended without an appeal being made under section 110 in respect of the notice, (b) any appeal made under that section by the liable party in respect of the notice has been withdrawn, or (c) any such appeal has been finally determined and the notice has not been cancelled under subsection (6) of that section. (6) In this section— “the court” means— the county court, in relation to England and Wales; the sheriff or a summary sheriff, in relation to Scotland; a county court, in relation to Northern Ireland; “the relevant 28-day period” means the period of 28 days beginning with the day on which the notice (or, where section 110(7)(b) applies, the rectified notice) is given.
Propose a change(1) In England and Wales, a penalty is recoverable as if it were payable under an order of the county court. (2) In Scotland, a penalty may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland. (3) In Northern Ireland, a penalty is recoverable as if it were payable under an order of a county court. (4) Where action is taken under this section for the recovery of a penalty, the penalty— (a) in relation to England and Wales, is to be treated for the purposes of section 98 of the Courts Act 2003 (register of judgments and orders etc) as if it were a judgment entered in the county court; (b) in relation to Northern Ireland, is to be treated for the purposes of Article 116 of the Judgments Enforcement (Northern Ireland) Order 1981 (S.I. 1981/226 (N.I. 6)) (register of judgments) as if it were a judgment in respect of which an application has been accepted under Article 22 or 23(1) of that Order. (5) In this section “penalty” means a penalty payable under a notice of underpayment.
Propose a change(1) Subsection (2) applies where— (a) the Secretary of State has assisted a person under section 117 in relation to proceedings, and (b) the person becomes entitled to some or all of the person’s costs or, in Scotland, expenses in the proceedings (whether as a result of an award or as a result of an agreement). (2) The Secretary of State’s expenditure in giving the assistance— (a) is to be charged on sums paid to the person by way of costs or expenses, and (b) may be enforced as a debt due to the Secretary of State. (3) A requirement to pay money to the Secretary of State under subsection (2) ranks, in England and Wales, after a requirement imposed by virtue of section 25 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (statutory charge in connection with civil legal aid). (4) Subsection (2), in its application to Scotland, does not affect the operation of section 17(2A) of the Legal Aid (Scotland) Act 1986 (requirement in certain cases to pay to the Scottish Legal Aid Board sums recovered under awards of, or agreements as to, expenses). (5) For the purposes of subsection (2), the Secretary of State’s expenditure is to be calculated in accordance with such provision (if any) as the Secretary of State makes for the purpose by regulations. (6) Regulations under subsection (5) may, in particular, provide for the apportionment of expenditure incurred by the Secretary of State— (a) partly for one purpose and partly for another, or (b) for general purposes. (7) Regulations under subsection (5) are subject to the negative resolution procedure.
Propose a change(1) This section applies where the Secretary of State believes that a person has committed, or is committing, a labour market offence (see section 151). (2) The Secretary of State may give a notice to the person— (a) identifying the labour market offence which the Secretary of State believes has been or is being committed; (b) giving the Secretary of State’s reasons for the belief; (c) inviting the person to give the Secretary of State a labour market enforcement undertaking in the form attached to the notice. (3) A labour market enforcement undertaking (an “LME undertaking”) is an undertaking by the person giving it (the “subject”) to comply with any prohibitions, restrictions and requirements set out in the undertaking (as to which, see section 120).
Propose a change(1) An LME undertaking may include a prohibition, restriction or requirement (each a “measure”) if, and only if— (a) the measure falls within subsection (2) or (3) (or both), and (b) the Secretary of State considers that the measure is just and reasonable. (2) A measure falls within this subsection if it is for the purpose of— (a) preventing or reducing the risk of the subject not complying with any requirement imposed by or under the relevant enactment, or (b) bringing to the attention of persons likely to be interested in the matter— (i) the existence of the LME undertaking, (ii) the circumstances in which it was given, and (iii) any action taken (or not taken) by the subject in order to comply with the undertaking. (3) A measure falls within this subsection if it is specified, or is of a description specified, in regulations made by the Secretary of State. (4) Regulations under subsection (3) are subject to the affirmative resolution procedure. (5) The Secretary of State may not— (a) invite a person to give an LME undertaking, or (b) agree to the form of an undertaking, unless the Secretary of State believes that at least one measure in the undertaking is necessary for the purpose mentioned in subsection (6). (6) That purpose is preventing or reducing the risk of the subject— (a) committing a further labour market offence under the relevant enactment, or (b) continuing to commit the labour market offence. (7) An LME undertaking must set out how each measure included for the purpose mentioned in subsection (2)(a) is expected to achieve that purpose. (8) In this section “the relevant enactment” means the enactment under which the Secretary of State believes the labour market offence concerned has been or is being committed.
Propose a change(1) An LME undertaking has effect from— (a) the time when it is accepted by the Secretary of State, or (b) any later time specified in the LME undertaking for this purpose. (2) An LME undertaking has effect for the period specified in the LME undertaking. (3) The maximum period for which an LME undertaking may have effect is two years. (4) The Secretary of State may release the subject from an LME undertaking. (5) The Secretary of State must release the subject from an LME undertaking if at any time during the period for which it has effect the Secretary of State believes that no measure in it is necessary for the purpose mentioned in section 120(6). (6) If the Secretary of State releases the subject from an LME undertaking, the Secretary of State must take whatever steps the Secretary of State considers appropriate to bring that fact to the attention of— (a) the subject; (b) any other persons likely to be interested in the matter.
Propose a change(1) A notice may be given under section 119 to a person by— (a) delivering it to the person, (b) leaving it at the person’s proper address, (c) sending it by post to the person at that address, or (d) subject to subsection (6), sending it to the person by electronic means. (2) A notice to a body corporate may be given to any officer of that body. (3) A notice to a partnership may be given to any partner. (4) A notice to an unincorporated association (other than a partnership) may be given to any member of the governing body of the association. (5) For the purposes of this section and of section 7 of the Interpretation Act 1978 (service of documents by post) in its application to this section, the proper address of a person is the person’s last known address (whether of the person’s residence or of a place where the person carries on business or is employed) and also— (a) in the case of a body corporate or an officer of the body, the address of the body’s registered or principal office in the United Kingdom; (b) in the case of a partnership or a partner, the address of the principal office of the partnership in the United Kingdom; (c) in the case of an unincorporated association (other than a partnership) or a member of its governing body, the principal office of the association in the United Kingdom. (6) A notice may be sent to a person by electronic means only if— (a) the person has indicated that notices under section 119 may be given to the person by being sent to an electronic address and in an electronic form specified for that purpose, and (b) the notice is sent to that address in that form. (7) A notice sent to a person by electronic means is, unless the contrary is proved, to be treated as having been given on the working day immediately following the day on which it was sent. (8) In this section— “electronic address” means any number or address used for the purposes of sending or receiving documents or information by electronic means; “officer”, in relation to a body corporate, means a director, manager, secretary or other similar officer of the body; “working day” means a day other than a Saturday, a Sunday, Christmas Day, Good Friday or a bank holiday under the Banking and Financial Dealings Act 1971 in any part of the United Kingdom.
Propose a change(1) The appropriate court may, on an application by the Secretary of State under section 124, make a labour market enforcement order in relation to a person if the court— (a) is satisfied, on the balance of probabilities, that the person has committed, or is committing, a labour market offence, and (b) considers that it is just and reasonable to make the order. (2) A labour market enforcement order (an “LME order”) is an order which— (a) prohibits or restricts the person in relation to whom it is made (the “respondent”) from doing anything set out in the order; (b) requires the respondent to do anything set out in the order. (See also section 126.) (3) An application for an LME order under this section is— (a) in England and Wales, to be made by complaint; (b) in Northern Ireland, to be made by complaint under Part 8 of the Magistrates’ Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)). (4) In this section “the appropriate court”— (a) in a case where the conduct constituting the labour market offence took place, or is taking place, primarily in England and Wales, means a magistrates’ court; (b) in a case where that conduct took place, or is taking place, primarily in Scotland, means the sheriff or a summary sheriff; (c) in a case where that conduct took place, or is taking place, primarily in Northern Ireland, means a court of summary jurisdiction.
Propose a change(1) The Secretary of State may apply for an LME order to be made under section 123 in relation to a person (the “proposed respondent”) if— (a) the Secretary of State has given the proposed respondent a notice under section 119, and (b) the proposed respondent— (i) refuses to give an LME undertaking, or (ii) otherwise fails, before the end of the negotiation period, to give an LME undertaking in the form attached to the notice or in such other form as may be agreed with the Secretary of State. (2) The Secretary of State may also apply for an LME order if the proposed respondent— (a) has given an LME undertaking to the Secretary of State, and (b) has failed to comply with the undertaking. (3) In subsection (1) “the negotiation period” means— (a) the period of 14 days beginning with the day after the day on which the notice mentioned in paragraph (a) of that subsection was given, or (b) a longer period agreed between the Secretary of State and the proposed respondent.
Propose a change(1) This section applies where a court deals with a person in respect of a conviction for a labour market offence. (2) The court may make an LME order in relation to the person if the court considers it is just and reasonable to do so. (3) An LME order must not be made under this section except— (a) in addition to a sentence imposed in respect of the offence concerned, or (b) in addition to an order discharging the person conditionally or, in Scotland, discharging the person absolutely.
Propose a change